Oommen v Capital Regional Housing Corporation, 2016 ABQB 701

Court of Queen ’ s Bench of Alberta Citation: Oommen v Capital Regional Housing Corporation, 2016 ABQB 701 Date: 20161209 Docket: 0903 03854 Registry: Edmonton Between: Paul Oommen Plaintiff - and - Capital Regional Housing Corporation and Jeff Doe Defendants _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] Mr. Oommen is suing his landlord Capital Regional Housing Corporation. As part of the pre-trial proceedings, this court ordered Mr. Oommen to provide certain records to the landlord. Mr. Oommen failed to do so. On May 17, 2016, by way of written decision, this court found Mr. Oommen in contempt of the court order, imposed a fine on him, and gave leave to the defendant landlord to apply to strike out Mr. Oommen’s statement of claim if Mr.

Oommen did not provide the required records by June 17, 2016. [ 2 ] The defendants’ lawyer did not, in a timely way, comply with the Rules of Court requiring him to prepare, obtain approval of, or settle the terms of, and file an order reflecting the court’s May 17 decision. [ 3 ] In this application, Mr. Oommen asks the court to declare the defendants’ lawyer in contempt for having failed to comply, first, with Rules 9.1, 9.2 and 9.5 which require orders to be prepared and filed within prescribed time limits, and, second, with what Mr.

Oommen characterizes as a direction not to deal with Mr. Oommen’s appeal until this hearing. [ 4 ] Mr. Oommen’s application for contempt is denied. [ 5 ] The breach of a rule is not, standing alone, a basis for contempt. The Rules themselves clearly state that most time limits within the Rules can be extended, either by consent from the parties or by a court if the parties cannot agree. It is only when a court issues an order to a litigant to comply with a rule that breach of the court order might constitute contempt.

In deciding whether a time limit under a rule should be extended, the main factor which a court will consider is whether the non-consenting party has suffered any prejudice as a result of the breach. Here, Mr. Oommen does not identify any prejudice which he has suffered as a result of the lawyer’s failure to act in a timely way. Nor did Mr. Oommen either, as Rule 9.2(1)(

a) authorized him to do, prepare a form of order himself or, as Rule 9.3 authorized him to do, make an application to have the court settle the contents of the order. Indeed, although Mr. Oommen does not disagree with any part of the draft order presented to him on September 23, 2016, he still does not consent to that order being filed. The only party who has suffered prejudice as a result of the failure to file an order reflecting the May 17 decision is the defendant landlord: the defendant cannot bring a motion to strike out Mr.

Oommen’s statement of claim, nor enforce the monetary penalty for contempt, until an order is filed. [ 6 ] The court did not make a direction concerning appeal process; therefore, the defendants’ lawyer cannot be in breach of any such court direction. A trial level court has no jurisdiction over process in the Court of Appeal; it therefore cannot give a direction regarding process in that court. This court did not intend to make a direction concerning the appeal process. This court merely observed that, because Mr.

Oommen’s appeal of the May 17, 2016 decision could not be perfected until an order reflecting that decision was filed, presumably nothing substantive would happen in the Court of Appeal until an order was filed. In any event, if Mr. Oommen did understand the court’s comments to constitute a direction that no process was to be undertaken in the Court of Appeal until the November 30 hearing, Mr. Oommen is the one who breached the direction, and Mr. Neal merely responded to Mr. Oommen’s initiative. [ 7 ] Mr.

Oommen’s application raises questions about the change in the Rules whereby an appeal is now taken from a decision rather than from an order. As this application illustrates, the rule change may not have achieved its intended ameliorations, at least with the ever increasing number of self-represented litigants: the change has not reduced delay in the appeal process and may mislead self- represented litigants on the legal right of a judge to change a decision until an order reflecting the decision has been entered.

Misunderstanding the situation may cause a self-represented litigant unnecessary cost in complying with appeal requirements such as ordering a transcript of the trial level proceedings. However, answers to those questions are for the Rules Committee, not for this hearing. Cases and authority cited [ 8 ] By Mr.

Oommen : Law Society of Alberta v Virk 2013 ABLS 20 ; Law Society of Alberta v Warrington 2014 ABLS 6 . [ 9 ] By the defendants : Alberta Treasury Branches v Weatherlok Canada Ltd. 2011 ABCA 314 at paras. 63-67 . [ 10 ] By the court : Glase v Glase 2009 BCCA 321 ; Janis v Janis 2016 BCCA 364 ; ALRI, The Rules Project, Consultation Memorandum No. 12.21, Civil Appeals , April 2007. Appendix A : Extracts from the Rules of Court 1. Background

a) Factual [ 11 ] Mr. Oommen is in the process of suing his landlord. As part of the pre-trial procedures in Mr. Oommen’s lawsuit, Mr. Oommen had been ordered by the court to provide certain records to the defendants. He failed to comply with that order. The defendant landlord then cited Mr. Oommen in contempt and indicated that one of the remedies it was seeking was the striking of Mr. Oommen’s claim. I heard the contempt application and issued a written decision on May 17, 2016: 2016 ABQB 283 . In that decision, I found Mr. Oommen in contempt of court and fined him $1,000.00. I also ordered Mr.

Oommen to comply with the court decision of October 21, 2015 by 4:00 p.m. on June 17, 2016 and gave leave to the defendant to peremptorily set down an application to strike Mr. Oommen’s statement of claim if he had not provided the required responses by June 17, 2016. The defendant did not, within 10 days of May 17, 2016, prepare and file a form of order reflecting my decision. [ 12 ] On June 14, 2016, Mr. Oommen, without having complied with my decision of May 17, 2016, filed a Civil Notice of Appeal in the Court of Appeal of Alberta. [ 13 ] Mr.

Oommen’s landlord brought an application, returnable on October 7, 2016 for the court to approve and endorse a form of order reflecting the May 17, 2016 decision. That order, in draft form, had been provided to Mr. Oommen by registered mail on September 30, 2016. It had also been sent to Mr. Oommen by email on September 23, 2016. At today’s hearing, Mr.

Oommen indicates that, although the email address to which it was sent is his correct email address, he does not own a computer and uses a friend’s computer or a computer at a library to access his email and that he had simply not accessed his email until September 30, 2016. However, in the affidavit which he filed in support of the current application, Mr. Oommen acknowledges that he received the draft form of order on September 23, 2016. [ 14 ] At the October 7, 2016 hearing, Mr.

Oommen stated that, despite having had a copy of the written decision itself since May, 2016 and the proposed form of order for at least one week, he required an adjournment to respond to the application.

He made it clear, however, that while he did not have any complaint about the content of the order (p. 14, lines 18 and 19), he did not want the order signed on October 7, 2016 (p. 20, line 2). [ 15 ] In addressing the issue of adjournment, I explained that although I would not be available for approximately one month, the parties did not have to await my return: as to the settling of the content of the order, any judge of the court could hear the application

because I had issued a decision in writing which could be compared with the draft order and any judge of the court could deal with acontempt application against Mr. Neal because any such application would be a new matter. However, Mr. Oommen indicated that itwould be better if the applications were both heard by me when I returned. I explored the potential issue of prejudice as a result of delayand did not hear of any prejudice to the defendants. I indicated that it therefore came down to Mr. Oommen’s choice, and his choice wasto wait. In dealing with Mr. Oommen’s situation, I added this: [Mr.

Oommen] cannot perfect his appeal until there is an order, so certainly the appeal will not be dealt with in the interim. I concluded that because neither party would suffer harm or prejudice, an adjournment could be granted to November 30. [16] On October 17, 2016, Mr. Oommen asked the Case Management Officer for the Court of Appeal for an extension of time tofile his factum. On October 21, 2016, Mr. Oommen informed the Case Management Officer that he was withdrawing his request for anextension.

b) Applicable Rules of Court and Forms [17] For ease of reference, extracts from the pertinent Rules of Court are attached as Appendix A. The Rules of Court on whichMr. Oommen relies are R. 9.1, 9.2. and 9.5; however, in order to give a comprehensive overview of the Rules relating to orders anddecisions, I reproduce the entirety of Division 1 of

Part 9 of the Rules. On the issue of extension of time limits, I have included Rule13.5. In addition, I have extracted some of the Rules relating to appeals. 2. A breach of the Rules is not, automatically, a contempt of court [18] Contempt of court is, essentially, a deliberate breach of a court order or an affront to the court itself.

The characterization ofthe remedy as “contempt of court” gives the best clue as to its content: the remedy is not described as “contempt of the Rules”. [19] As the British Columbia Court of Appeal highlighted in Glase, in contempt proceedings, the court is ensuring that its ordersare respected: 8 Contempt of court is an issue between a party and the court. It is not concerned with the merits of the dispute between parties tolitigation (Frith v. Frith, 2008 BCCA 2 at para. 36, 47 R.F.L. (6th) 286). Although the issue is pursued by the respondent, the court'sdetermination that Mr.

Glase is in contempt only indirectly affects her interests. As was stated in Ontario (Attorney General) v. PaulMagder Furs Ltd. (1992), (ON CA), 10 O.R. (3d) 46 at 53, 94 D.L.R. (4th) 748 (C.A.), a finding of contempt of court"transcends the dispute between the parties; it is one that strikes at the very heart of the administration of justice ...". [Emphasis added] [20] The power to sanction for contempt of court is inherent and necessary to uphold the court's dignity and process.

Refusal toobey court orders "strikes at the heart of the rule of law": Glase. [21] Not complying with a civil Rule of Court will not, on its own, constitute contempt of court. Rules of Court establish generalguidance for litigants on the conduct of litigation. As the Rules themselves provide, the parties to litigation can, generally, adapt therequirements of the Rules to the needs of their own proceedings and, if the parties cannot agree, the court has explicit authority to varythe rules, including rules establishing time limits: R. 13.5.

Where one party has breached a rule without the other party’s consent, theoffended party’s remedy is to bring the matter before the court for a ruling as to whether the offending party must comply with the ruleand, if so, within which time period.

After reviewing all the evidence presented on any such motion the court may conclude that: - the breach should be forgiven in the circumstances, or, - require the offending party to comply with the rule, typically within a stated time period. [22] If the offending party fails to comply with an order of the court requiring that party to comply with the rule, or comply with avariation of the rule, or to comply with the court order within a stated period of time, then the offended party can cite the allegedoffender in contempt of court.

The court will then hold a hearing to determine if the contempt has been proved. 3. Here, the failure to comply with Rules 9.2 and 9.5 does not constitute contempt

a) The defendants’ lawyer failed to comply with Rules 9.2 and 9.5 [23] It is clear that there has been a breach of Rules 9.2 and 9.5: the defendants’ lawyer should have prepared a draft order andpresented it to Mr. Oommen for approval as to content within 10 days of the written decision having issued, and the defendants’ lawyershould have filed a form of order within three months of the decision having issued. [24] The defendants’ lawyer has not provided any excuse for having failed to do what the rules require. [25] It may be that the defendants’ lawyer was somewhat side-tracked by the appeal launched by Mr.

Oommen within the timeframe this court had given Mr. Oommen to comply with the May 17 order; however, as far as I understand the law, the mere filing of anappeal of a civil decision does not constitute an automatic stay of that decision. [26] In

summary on the issue of excuse, there is no excuse for the defendants’ lawyer having failed to present, in a timely fashion,an order to be either settled or signed by the court.

b) The failure to comply with the Rules did not cause Mr. Oommen any prejudice [27] What is the result of that failure?

[ 28 ] The failure to file an order reflecting the decision has only negatively affected the defendant: the defendant has not been in a position to apply to strike out Mr. Oommen’s statement of claim even though Mr. Oommen has not complied with either the Master’s order or this court’s order. [ 29 ] Mr. Oommen has not suffered any prejudice or injury of any kind as a result of the failure to file an order reflecting the court’s May 17, 2016 decision. In particular, Mr. Oommen has not suffered any prejudice in relation to his appeal of the May 17 decision: Mr.

Oommen has been allowed to maintain his appeal of the court's May 17, 2016 decision without an order having been entered. [ 30 ] In any event, it is important to note that Mr. Oommen did not avail himself of the opportunity clearly set out in the rules to propose his own form of order to reflect the May 17th decision. In addition, since at least September 23, 2016, Mr. Oommen has steadfastly opposed the entry of an order which he recognizes accurately reflects the decision of the court. [ 31 ] If Mr.

Oommen had brought an application to approve his own form of order or to approve a different form of order from that proposed by the lawyer, or if he had consented to entering the draft order which contained no error, the matter would have been settled much earlier with a potentially different costs result. [ 32 ] In

summary, the circumstances here are as follows: - Rule 9.1 has not been breached: the form of order proposed by the lawyer for the defendants complies with the requirements of this rule; - Rule 9.2(1) has been breached: the landlord was successful on the contempt application and it therefore had the responsibility of preparing a draft order; - Rule 9.2(2)(

a) has been breached: neither the defendants’ lawyer nor Mr. Oommen prepared and served a proposed form of order within 10 days of the issuance of the decision; - Rule 9.5(1) has been breached: an order has been presented for signing and entry more than 3 months after the decision was issued; - the defendants have suffered prejudice as a result of non-compliance with the Rules; - Mr. Oommen has not suffered prejudice as a result of non-compliance with the Rules.

c) Mr. Oommen’s authorities are neither relevant nor helpful [ 33 ] Mr. Oommen relies on two decisions of the Law Society both for the proposition that the defendants’ lawyer should be held in contempt and for the sanction that should be imposed. [ 34 ] With respect, those decisions are neither relevant nor helpful. [ 35 ] First, as is obvious because these are Law Society proceedings and not court decisions, these decisions do not deal with contempt of court [ 36 ] Second, these decisions were made as a result of complaints from a lawyer’s own client.

Lawyers owe duties to their clients in addition to the duties they owe to courts; some of those duties are contractual in nature; contractual duties are not a feature of contempt of court. The purpose of discipline of lawyers by lawyers – as set out, for example, in paras. 46-49 and paras. 73-75 of the Virk decision - is different from the purposes of the contempt of court mechanism – as set out above. Moreover, as is made clear at para. 76 of the Virk decision, “some of these clients suffered financial loss as a result of the delays in prosecuting their matter to conclusion”. As indicated above, Mr.

Oommen suffered no loss of any kind, much less a monetary loss. [ 37 ] Third, the facts of the two decisions relied on by Mr. Oommen are not similar to the facts in the situation here. Dealing first with the Virk decision, I note that one of the pages from the Virk decision which Mr. Oommen does not reproduce contains the conclusion of para. 46 omitted by Mr. Oommen. The omitted portion includes the following comment: “Opposing counsel was responsible for some of the delay given that there was disagreement over the wording of the Order.” In that same context, however, Mr.

Oommen does include in his submission the paragraphs of the Virk decision which relate to citations 8 and 9 in that case which included allegations of delay. The decision states: In relation to Citations 8 and 9, the Hearing Committee does not find that Mr. Virk’s conduct amounted to conduct deserving of sanction and accordingly dismisses those citations. A very real and substantive dispute arose between counsels regarding the terms of the Order. It is unfortunate that it took so long to resolve that disagreement, however, that cannot be solely laid at the feet of Mr.

Virk. [ 38 ] The delay here cannot be solely laid at the feet of the defendants’ lawyer. Moreover, the delay in the Virk case was 8 months, which is a considerably longer delay than the one which occurred here. However, the overall situation of delay in that case was somewhat similar to the situation here: Mr.

Oommen did not prepare his own draft order and refused to have the order signed and entered and he is therefore responsible for some of the delay. [ 39 ] Finally with respect to the Virk matter, there was one overall sanction imposed; it is not possible to parse that sanction into the individual component attributable to delay in producing an order. [ 40 ] Turning to the Warrington matter, Citation 2 in that case read: It is alleged that you failed to provide competent services to your client, S.H. and such conduct is conduct deserving of sanction. Mr.

Warrington admitted guilt on that citation and admitted that his conduct deserved sanction. Defendants’ lawyer here neither admits

guilt nor admits that his conduct deserves sanction. [ 41 ] Moreover, as to the components of citation 2, only one of the particulars relates specifically to delay in preparing a court order. And, on the specific issue relating to the preparation of the court order, the committee found that “the transcript was clear that the court requested [Mr. Warrington] to prepare” the order. In the situation here, the court did not request Mr. Neal to prepare the order. [ 42 ] Finally, Mr. Warrington was found guilty of a total of four sanctions.

A reprimand, and the same fine, $1,000.00 on each citation, was imposed as a sanction. The committee did not comment on the reasons for imposing the same fine for each citation; the sanction might therefore represent what a court would describe as respecting the totality principle, that is, imposing a sanction where the conduct on all citations would have been taken into account. [ 43 ] In

summary, therefore, Mr. Oommen’s authorities aren’t relevant because they don’t deal with contempt of court situations. His authorities aren’t helpful because both the objectives of lawyers’ discipline hearings and the pertinent facts of those decisions are very different from the objectives and facts in the circumstances here.

d) Mr. Oommen has not proved that the defendants’ lawyer is in contempt of court [ 44 ] In

summary, based on all of the foregoing, Mr.

Oommen has not proved that the defendants’ lawyer is in contempt of court. [ 45 ] There was no court order relating to the preparation of an order. [ 46 ] The breach of Rules 9.2 and 9.5 is rectified by this court: - ordering that the 10 day time limit does not apply in the circumstances here; - approving the form of order presented by the defendants’ lawyer, and, - giving leave to the defendants to file the signed order even though more than three months have elapsed since the decision issued. [ 47 ] In coming to the foregoing conclusions, the court takes into account that Mr.

Oommen has no objection to the draft order prepared by the defendants’ lawyer and was himself partly responsible for the delay in entering the order. The court also takes into account that Mr. Oommen has not suffered any harm as a result of the delays. 4. This court did not issue a direction concerning appeal process; the defendants’ lawyer is therefore not in breach of any such direction from the court [ 48 ] Mr. Oommen has misinterpreted the comments which I made during the October 7, 2016 hearing.

I was not giving a direction that nothing should happen in the appeal until the November 30 th hearing: I was merely observing that presumably the Court of Appeal would not actually hear an appeal until an order was filed. As a self-represented litigant, Mr. Oommen probably does not realize that a trial judge has no jurisdiction to control process in the Court of Appeal. [ 49 ] In any event, it is Mr. Oommen himself who breached what he misinterpreted as a direction: after the October 7 hearing, Mr. Oommen applied for an extension of time to the Court of Appeal’s case management officer. [ 50 ] In

summary on this point, the defendants’ lawyer is not in contempt of any direction of this court. 5. The court denies the defendants’ application to henceforth serve Mr. Oommen by email [ 51 ] I will not make the order requested by the defendant/landlord concerning service on Mr. Oommen: Mr. Oommen states that he does not own a computer. In those circumstances, even though Mr. Oommen appears, even on the basis of his own representations, to currently have as much access to a computer as he chooses, that situation could change in the future. 5.

Implications, especially for self-represented appellants, of the change in the Rules from appeals of orders and judgments to appeals of decisions [ 52 ] Mr. Oommen’s application raises questions about the effect, especially on self-represented litigants, of the change in the Rules whereby an appeal is now taken from a decision rather than from an order. [ 53 ] The ALRI Consultation Memorandum on Civil Appeals adopts clarity as one of the objectives for the Rules Project: para. 7.

In addition, the Appeals Committee of the Rules Project adopted as working principle 5: An appeal process should ensure that, so far as is practical, delay, cost, and uncertainty of process are reduced to a minimum. [ 54 ] These objectives and principle are particularly important to the ever increasing number of self-represented litigants. [ 55 ] The Appeals Committee went on to consider delay in the appeal process.

Under the heading, “Nature of the problem”, the Committee dealt first with “Entry of judgment” and said the following: At present, time for filing notice of appeal from a Queen’s Bench matter does not run until judgment is entered and served. However, current practice is problematic as there are no deadlines to encourage prompt entry, aside from the r. 327 requirement to obtain leave if judgment is not entered within one year. Consequently, an appeal may incur considerable delay in getting started.

As noted by the General Rewrite Committee, “Any party considering whether to appeal an order may deliberately delay its entry to buy additional time to decide about the appeal or simply to postpone the day of reckoning.” Given that the initial decision to sue will often have to be made

within 2 years of the claim arising, allowing another full year to decide whether to appeal is inconsistent with both Rules Project objectives and the Committee’s working principles. [ 56 ] The Appeals Committee then went on to consider recommendations from the General Rewrite Committee requiring service of a draft order within 10 days of the date of the decision and requiring that an order be entered within three months of the date of the decision.

The Appeals Committee concluded that, even if these recommendations were adopted – as they were – several months may still pass before a party has to act on an intention to appeal; the Committee considered that it was reasonable to expect an appellant to decide whether to bring an appeal in a shorter time. [ 57 ] In recommending that appeals be from decisions rather than orders, the Committee also noted that time to appeal under the Divorce Act runs from the date of the divorce decision and that the time for appealing to the Supreme Court of Canada also begins to run from the date of decision. [ 58 ] As this case illustrates, the rule change in Alberta does not appear to have achieved its intended ameliorations: it has not reduced delay at the earliest stage in the appeal process. [ 59 ] In part, this result may be due to the fact that the Appeals Committee did not consider the further changes in the Rules relating to judgments and orders whereby, explicitly, a judge can direct one of the parties to prepare a form of order, and, a party who is not a successful party can prepare and serve a draft of an order.

In the result, the current Rules clearly allow all parties to an action to move the appeal process along without delay. While the current options for settling and entering an order are clearly set out in the current Rules, the Appeal Rules do not attempt to address the fact that an appeal from a decision does not in any way speed up the process of entering a judgment or an order. [ 60 ] Appeals are not from reasons for decision: as appeal courts frequently observe, a judge’s reasons for decision may not be correct but the resulting judgment or order may be correct.

See, for example, Janis , where the British Columbia Court of Appeal said: 78 An appeal may only be brought from an order, and not from reasons for judgment: Knapp v. Town of Faro, 2010 YKCA 7 at para. 6 . As noted in D.(B.) v. British Columbia (1997), 30 B.C.L.R. (3d) 201 (C.A.) at paras. 60-63 , this Court is a creature of statute and authority must be found in the Court of Appeal Act or another enactment conferring jurisdiction. Section 6(2) of the Court of Appeal Act reads as follows: 6(1) An appeal lies to the court (

a) from an order of the Supreme Court or an order of a judge of that court, and (

b) in any matter where jurisdiction is given to it under an enactment of British Columbia or Canada.

(2) If another enactment of British Columbia or Canada provides that there is no appeal, or a limited right of appeal, from an order referred to in subsection (1), that enactment prevails. 79 As in D.(B.), there is no other enactment within the meaning of s. 6(2) involved in this case, and the jurisdiction to entertain the appeal must therefore be found in the order. This ground of appeal is taken from the reasons for judgment, and not from the order. In D. (B.) at para. 62, Donald J.A. wrote the following: The rule against appealing from reasons rather than from an adverse order is well settled.

In Sopinka and Gelowitz, The Conduct of an Appeal (Toronto: Butterworths, 1993) this is said at 4 and 5: It is a fundamental premise in the law of appellate review that an appeal is taken against the formal judgment or order, as issued, and entered in the court appealed from, and not against the reasons expressed by the court for granting the judgment or order.

Although the appellate court will frequently discover in the reasons for judgment errors of law that ultimately ground the reversal of the judgment or order, it is the correctness of the judgment or order that is in issue in the appeal, and not the correctness of the reasons . [Emphasis added] Although in Alberta the Court of Appeal Act does not legislate what can be appealed, the principle that the reasons for decision are not what is appealable is applicable in this province.

This is recognized by Rule 14.15(1)(c) – which requires a copy of the order to be included in the Appeal Record – and by Rule 14.18(2) which requires a copy of the order to be included in the Appeal Record “as soon as possible” if it not available within 5 days of ordering the transcripts. [ 61 ] This case also illustrates the problems which arise in attempting to provide clarity in the process to self-represented litigants, of whom there are an ever increasing number.

Because a self-represented litigant is told to appeal a decision, that litigant will probably not understand the importance of obtaining and entering a formal order or judgment. Until an order or judgment is entered, a judge could change or vary a decision. This flexibility is, of course, in the public interest: obvious errors can be corrected without the expense of an appeal. A judge who is advised by lawyers who receive reasons for decision that the judge has misunderstood something which is material will, properly, change the decision.

Similarly, judges may realize on their own that they have made a mistake in their reasons or decision and change the decision; judges are only functus , or without further authority, once the decision has been entered. Given the relatively short deadlines for steps within the appeal process, for example, the ordering of transcripts of trial level proceedings, a litigant may be put to considerable expense without being certain what exactly is being appealed. [ 62 ] In addition to situations of error, there are at least two other situations in which reasons for decision should not immediately be appealed.

First, there is the situation where a judge will set out the principle on which calculations should be made but does not make those calculations, leaving it to the parties to work out the actual result. These situations arise not only in construction, builders’ lien, and child and spousal support cases, but in every case where a monetary award is called for. Until there has been a calculation of the monetary award, none of the parties are in a position to decide whether to appeal. Second, there is the decision on costs. Most judges do

not want to hear argument on costs at the same time as hearing submissions on the substantive issues: it would be inappropriate for a judge to learn, for example, about offers of settlement until after a decision has been issued.

Yet, costs should be included in the formal judgment or order as they are an integral part of the decision and should form part of the analysis undertaken with respect to the possibility of appeal. [ 63 ] The two analogies offered by the Appeals Committee – the Divorce Act and appeals to the Supreme Court of Canada – may not be apt. [ 64 ] As to divorce proceedings, I do not understand the reference in the Committee’s report to the concept of “decision” in relation to divorces: para. 37.

Indeed, I cannot find any s. 2.1 in the current Divorce Act – see footnote 30 – and s. 21 , which does deal with appeals, does not use the word “decision”. [ 65 ] In any event, a divorce judgment is, by its nature, simple, clear, and limited to one issue: the parties are, or are not, divorced. The entry of a formal judgment is not as necessary as in other areas of civil law. Moreover, as the time limits in the Divorce Act illustrate, divorce judgments affect not only status, but also potential children of the marriage and potential new marriage partners.

It is therefore imperative to have short, clear, timelines around the status of the divorce judgment. Despite all of those unique features, which are not applicable to civil appeals generally, the Divorce Act defers to provincial rules of court concerning procedure on appeals: s. 21(6). [ 66 ] Appeals from appeal courts are, by definition, appeals taken after considerable reflection within the justice system; therefore, obvious errors in the original reasons for decision will presumably long since have been corrected.

When making monetary awards, appeal courts will usually identify a specific amount, again having had the benefit of evidence and argument on the specific amounts set out in the trial judgment or order.

Judgments and orders arising from appeal court reasons for decision, therefore, usually do not have to be settled; they can be directly appealed to the Supreme Court of Canada. [ 67 ] In order to speed the appeal process and ensure that litigants, in particular self-represented litigants, clearly understand both the process and its underlying principles, it may be useful to reassess potential advantages of appeals from judgments and orders. However, that is not a task for this court, but for the Rules of Court Committee. 6.

Costs [ 68 ] If the parties are not agreed on costs of the October 7 and November 30 hearings, I may be spoken to within 30 days of the release of this decision. Heard on the 30 th day of November, 2016. Dated at the City of Edmonton, Alberta this 9 th day of December, 2016. J.B. Veit J.C.Q.B.A. Appearances: Paul Oommen, on his own behalf Colin C. Neal, Brownlee LLP for the Defendants APPENDIX A

Part 9 Judgments and Orders Division 1 Preparation and Entry of Judgments and Orders Form of judgments and orders 9.1(1) Judgments and orders must be divided into consecutively numbered paragraphs.

(2) Every judgment and order must include (

a) the date on which and the location at which it was pronounced, (

b) the name of the master or judge who made it, and (

c) the date of entry. Preparation of judgments and orders 9.2(1) The Court may direct which party is to prepare a draft of the judgment or order pronounced by the Court, but if the Court does not do so, the successful party is responsible for preparing the draft.

(2) The following rules apply, unless the Court otherwise orders: (

a) within 10 days after the judgment or order is pronounced, the responsible party must prepare a draft of the judgment or order in accordance with the Court’s pronouncement and serve it on every party in attendance at the hearing, but if the responsible party does not prepare and serve the draft then any other party may do so; (

b) within 10 days after the draft judgment or order is served, each party served may (

i) approve the draft, or (ii) object to the draft, providing particulars of the objection; (

c) if a party does not approve or object to the draft judgment or order within the 10 days described in clause (

b) but all other requirements are met and service of the draft is proved, the judgment or order may be signed and entered. Dispute over contents of judgment or order 9.3 If there is a dispute about the contents of a judgment or order, the disputants may apply to the Court to resolve the dispute. Signing judgments and orders 9.4(1) A judge or master may sign a judgment or order when it is pronounced.

(2) If a judge or master does not sign a judgment or order when it is pronounced, the court clerk may sign the judgment or order in any of the following circumstances: (

a) in a proceeding which a party adverse in interest did not attend; (

b) if the party adverse in interest approves the form of the judgment or order or waives approval of its form; (

c) if the Court directs that approval of the form of the judgment or order by a party is not required; (

d) if the Court directs the court clerk to sign the judgment or order.

(3) In any circumstance other than those described in subrule (2), a judgment or order must be signed by a judge or master. Entry of judgments and orders 9.5(1) Subject to subrule (2), every judgment and every order is entered by filing it with the court clerk, who must make a note in the court file of the entry and the date of entry.

(2) A judgment or order is not to be entered more than 3 months after it is pronounced except with the Court’s permission, which may only be obtained on application and after notice is served on each of the other parties. Effective date of judgments and orders 9.6 Every judgment and every order, whether or not it has been entered, comes into effect on (

a) the date of pronouncement , or (

b) if the Court orders the judgment or order to come into effect before or after the date of pronouncement, the date so ordered.:

[Emphasis added] . . . Variation of time periods 13.5(1) Unless the Court otherwise orders or a rule otherwise provides, the parties may agree to extend any time period specified in these rules.

(2) The Court may, unless a rule otherwise provides, stay, extend or shorten a time period that is (

a) specified in these rules, (

b) specified in an order or judgment, or (

c) agreed on by the parties.

(3) The order to extend or shorten a time period may be made whether or not the period has expired. . . .: Right to appeal 14.4(1) Except as otherwise provided, an appeal lies to the Court of Appeal from the whole or any part of a decision of a Court of Queen’s Bench judge sitting in court or chambers, or the verdict or finding of a jury. . . . How to start an appeal 14.7 Appeals must be started (

a) where an enactment or these rules give a right of appeal, by filing a notice of appeal under rule 14.8, or . . . Filing a notice of appeal 14.8(1) In this rule, “date of decision” means the later of (

a) the date that the judgment, order or other decision being appealed is made, or (

b) if reasons are given after a judgment, order or other decision being appealed is made , the date the reasons are issued .

(2) An appellant must (

a) file with the Registrar 3 copies of a notice of appeal that meets the requirements of rule 14.12 and Form AP - 1, . . . [Emphasis added] Contents and format of notices of appeal and cross appeal 14.12(1) A notice of appeal must be in Form AP - 1 and a notice of cross appeal must be in Form AP - 2.

(2) A notice of appeal must contain the following information: (

a) the parties’ names, in the same order used in the style of cause in the court appealed from, with an indication of the status of each on the appeal and in the court appealed from; (

b) the name and file number used in the court appealed from; (

c) whether the whole or only part of the decision is appealed, and if only

part is appealed, which part; (

d) whether the appeal is required by these rules to be, or it is anticipated the appeal will be, managed as a fast track appeal; (

e) whether the action under appeal was the subject of a restricted access order under

Part 6, Division 4, or of any statutory restriction on publication; (

f) the relief claimed.

(3) A notice of appeal or cross appeal must include . . . (

b) particulars of or a copy of the judgment, order or other decision being appealed.

Ordering the Appeal Record 14.15(1) Subject to rule 14.20, the appellant must (

a) within 10 days after filing a notice of appeal, order or commence preparation of the Appeal Record, . . . and (

c) within 5 days after ordering the Appeal Record and transcripts, file a copy of the order and serve a filed copy on the respondent [Emphasis added] Contents of Appeal Record – standard appeals 14.18 (1) . . .

(2) Where any document required for the Appeal Record is not available at the time of its preparation, a note to that effect must be inserted in the Appeal Record in its place, and sufficient copies of the unavailable document must be filed as soon as possible or included in or appended to another document required to be filed.